No Easy Answers

Monday, May 22, 2006

Reporter Privilege and Wen Ho Lee

Judge Parker's statement on Wen Ho Lee Case, Sept 13, 2000 sets the stage for Dr. Wen Ho Lee's subsequent civil damages suit against the government.

"It is only the top decision makers in the Executive Branch, especially the Department of Justice and the Department of Energy and locally, during December, who have caused embarrassment by the way this case began and was handled. They did not embarrass me alone. They have embarrassed our entire nation and each of us who is a citizen of it.

"I might say that I am also sad and troubled because I do not know the real reasons why the Executive Branch has done all of this. We will not learn why because the plea agreement shields the Executive Branch from disclosing a lot of information that it was under order to produce that might have supplied the answer.

"Although, as I indicated, I have no authority to speak on behalf of the Executive Branch, the President, the Vice-president, the Attorney General, or the Secretary of the Department of Energy, as a member of the Third Branch of the United States Government, the Judiciary, the United States Courts, I sincerely apologize to you, Dr. Lee, for the unfair manner you were held in custody by the Executive Branch.

"Court will be in recess."

In an ironic twist, reporters' refusal to disclose their sources is protecting the government's interests.

Below is a small collection of news stories in reverse chronological order, followed by links to three court decisions on two separate cases, Pincus refusal to testify is a newer case, with the lower court decision to compel testimony being supported by the earlier appellate decisions in "the other case," including a critique of the rule of law proposed by Judge Tatel.

Settlement could leave issue of reporter privilege' unsettled - 05/22/06

WASHINGTON The Supreme Court could decide as soon as today whether to take up a case that tests the rights of reporters to keep their sources secret. But a new twist in the dispute, which involves former nuclear scientist Wen Ho Lee, could take the case out of the court's hands.

Lawyers for Lee, who subpoenaed reporters to try to prove that the U.S. government violated the Privacy Act by leaking information about him, told the court last week that a settlement in Lee's case against the government could be imminent. If there is a settlement, the high court would have no need to rule on the scope of a reporter's privilege not to disclose confidential sources.

Supreme Court on hold as U.S. and Lee negotiate - 05/18/06

The U.S. Court of Appeals in Washington, D.C., in June upheld contempt charges and $500-per-day fines imposed by U.S. District Judge Thomas P. Jackson on Thomas, James Risen of The New York Times, Josef Hebert of The Associated Press and Bob Drogin of the Los Angeles Times. Jeff Gerth of The New York Times was also originally subpoenaed, but the court dismissed the contempt charge against him after he testified he had no confidential sources and did not know the identity of Risen's sources. Walter Pincus of The Washington Post, who was found in contempt in November, appealed separately.

Unlike Judith Miller's attempt to claim a reporter's privilege -- which was before a grand jury -- Lee's case pits the rights of the press to keep confidential sources against a civil action with no national security implications.

Legal Watch: Federal Appeals Court refuses to rehear Wen Ho Lee case (November 11, 2005)

Last week, the full D.C. Circuit voted 4-4 not to rehear the case, with 2 judges recusing themselves. Because there are 10 active judges on the court, the reporters needed 6 votes to get a rehearing. Three judges wrote dissents, two of which focused on the harm the case could have on reporting. ...

The trial court and the three-judge panel recognized that a reporter's privilege exists in civil cases such as Lee's, but the panel ruled that it was overcome because the identity of the source or sources goes to "the heart of the matter" in his case and that Lee had exhausted all reasonable alternative avenues to learn who leaked the information.

In their dissents, Judges David Tatel and Merrick Garland argued that it was improper to consider only these two factors, especially in Privacy Act cases and other litigation in which the leak itself is "the heart of the matter." Instead, they said, courts should broadly balance the public interest in protecting confidential sources against the private interest in forcing disclosure and require reporters to reveal their sources only in "the most exceptional cases."

Scientist's Suit a Blow to Press Shield - 11/06/05

Should ordinary citizens have the right to know the names of confidential sources that have accused them of crimes, or should the press be able to keep sources anonymous to protect whistle-blowers and uncover government wrongdoing?

Lee's attorneys contend that his suit, aimed at forcing reporters to disclose confidential sources for stories they wrote about the investigation of Lee on espionage allegations, will protect citizens from being unfairly attacked by government officials behind a veil of anonymity.

NMU: Another reporter found in contempt in Wen Ho Lee suit - 11/17/05

In ruling that Pincus must reveal his source or pay a $500-a-day fine, U.S. District Judge Rosemary M. Collyer wrote that "the qualified First Amendment reporter's privilege does not protect Mr. Pincus from revealing his sources and that the reporter's privilege urged by Mr. Pincus in federal common law is not tenable." ...

Collyer found no First Amendment qualified privilege after applying the so-called Zerilli test, which arose out of Zerilli v. Smith, in which the D.C. Circuit recognized a qualified reporter's privilege. According to the test, the privilege is overcome and the reporter must reveal the confidential source if the party seeking the information can show it is "of central importance" to the case and that the plaintiff has "exhausted every reasonable alternative" to find the source of the information.

The court found the information Lee sought was essential to his case, writing that without "obtaining truthful testimony from journalists concerning the identities of the Government sources who allegedly leaked information to the press, Dr. Lee cannot proceed with his lawsuit."

In addition, the court ruled that Lee has "exhausted every reasonable alternative" because he had "deposed twenty Government officials" in search of the information. The court ruled that "Mr. Pincus' argument that Dr. Lee should have deposed every individual suspected of providing information to Mr. Pincus or possessing any information that was allegedly leaked to the process if far beyond the scope of Dr. Lee's burden under Zerilli."

Pincus also argued the court should adopt a three-part test for a common law reporter's privilege proposed by U.S. District Court Judge David S. Tatel in In re Miller -- the case involving former New York Times reporter Judith Miller and her refusal to reveal her confidential source in an investigation into the outing of the identity of a CIA agent. Tatel's test was similar to Zerilli but he added that the court must "weigh the public interest in compelling disclosure, measured by the harm the leak caused, against the public interest in newsgathering, measured by the leaked information's value."

The court refused to apply this new test, finding it "inherently unworkable." It found that the D.C. Circuit law was clear that only the two-part Zerilli test is used to overcome the reporter's privilege. The court also thought that submission "of a reporter's privilege to a judge's determination of the newsworthiness of his or her story is also very troubling. Such a practice would create a subjective and elastic standard whose outcome could not be predicted."

Wen Ho Lee v. Dept of Justice, 04-5301 DC Cir. (June 28, 2005)

Order on Petition for Rehearing - (Nov 2, 2005)

Wen Ho Lee v. Dept of Justice (Pincus), 99-3380, Dist. DC, Nov 16, 2005

The case has been settled, and the reporter's privilege will not be "tested" in a Supreme Court case as a result of the Wen Ho Lee events.

See This ScotusBlog report which describes a settlement to Mr. Lee, paid by both the US government and several news organizations.
See this ScotusBlog report for the following proposition:

"In a highly unusual development, the Court denied review of two reporters' appeals seeking a right to protect their news sources from forced disclosure in a civil lawsuit. The Court had been told that settlement negotiations were ongoing -- a fact that normally leads the Court simply to sit on a case until it gets word on the outcome of those discussions. Here, the Court did not wait for formal notification of the settlement that occurred last week; rather, it denied review without comment -- an action that perhaps should be interpreted as a desire not to hear the underlying claim of a "reporters' privilege." The action leaves intact a federal appeals court ruling that there is no such privilege under the First Amendment or federal common law."
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